ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-11-0195

DATE: 20150921

BETWEEN:

Emily Beauchamp, by her Litigation Guardian Janice Beauchamp, Kelly Beauchamp and Janice Beauchamp

Plaintiffs

– and –

Dr. Charles Gervais, J. Doe, Dr. Howard Pattinson and Mary Pattinson

Defendants

A.L. Rachlin, for the Plaintiffs

M. Veneziano and D. Quayat, for the Defendants

HEARD: July 30, 2015

Healey J.

Nature of the Motion

[1] Emily Beauchamp was born with spina bifida. Janice and Kelly Beauchamp are her parents. They have brought this action against Dr. Charles Gervais, a radiologist, alleging that he breached his duty of care by failing to read obstetrical ultrasounds and to diagnose the spina bifida. The two other defendants, Dr. Howard Pattison and Mary Pattison, are being released from the action; the motions before the court do not involve them.

[2] The plaintiffs have brought a motion to amend the statement of claim. Their motion is opposed on the basis that the proposed amendments attempt to assert a new cause of action, which was statute barred when the notice of action was issued in this case on February 25, 2011.

[3] Dr. Gervais has brought a motion for summary judgment to dismiss the entire claim, on the basis that the claim is barred by the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B. He argues that the plaintiff Janice Beauchamp became aware of her cause of action against Dr. Gervais no later than June 2005, and the notice of action was issued outside of the ensuing two-year limitation period.

[4] Dr. Gervais also moves to strike the claim as disclosing no cause of action, on the grounds that no duty of care is owed by a doctor to an unborn child, and the adult plaintiffs have no basis for their claims under the Family Law Act, R.S.O. 1990, c. F.3, if the primary cause of action is untenable at law.

[5] The plaintiffs have conceded that Emily’s claim raises no genuine issue for trial on the basis of the law as set out in Paxton v. Ramji, 2008 ONCA 697, 299 D.L.R. (4th) 614, leave to appeal to S.C.C. refused. Accordingly, Emily’s claim against Dr. Gervais will be dismissed. As earlier noted, the plaintiffs also consent to an order dismissing the claim against Dr. Howard Pattinson and Mary Pattinson.

[6] Counsel agree that if the plaintiffs’ motion to amend the claim to assert personal claims by the parents is unsuccessful, Dr. Gervais’ Rule 20 motion under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, must necessarily be granted.

Motion to Amend

[7] The plaintiffs propose to amend their claim in the following material respects:

1. To amend their current derivative Family Law Act claims to add the words “…personally and pursuant to the Family Law Act, R.S.O. 1990, c.F.3, as amended”.

2. To increase the damages claim from $1,000,000 to $5,000,000.

3. To allege that the duty of care owed by each health professional to Janice Beauchamp and her unborn child was also owed to Kelly Beauchamp.

4. To add the following new paragraphs:

22 a) the defendants failed to advise Janice Beauchamp and Kelly Beauchamp that the fetus had spina bifida.

22 b) Janice Beauchamp and Kelly Beauchamp would have terminated the pregnancy if the defendants had advised them the fetus had spina bifida.

22 c) the defendants knew or ought to have known by no later than February 2, 2004 that the fetus had spina bifida.

22 d) the plaintiffs plead that they did not know, and could not reasonably have known, whether they had a cause of action against the defendants until they received the expert opinion of Dr. Roger Stronell dated February 3, 2010, and, consequently, the limitation period with respect to their cause of action against the defendants did not begin to run until that date.

5. At para. 33, to plead “[t]he plaintiff Emily Beauchamp would not have been born sustained the injuries she did but for the above-pleaded failures of the defendants. The above-pleaded failures of the defendants, alone or in combination, caused or materially contributed to the resulting damages of Emily Beauchamp and her parents.”

[8] The arguments on this motion focus primarily on the most controversial of the amendments being proposed: paragraphs 22 b), 33 and 22 d).

[9] The position of the plaintiffs is that the proposed amendments to assert personal claims on behalf of Kelly and Janice Beauchamp constitute additional particulars of the damages sustained by them due to Dr. Gervais’ negligence, rather than advancing a new cause of action that would be subject to a fresh limitation defence. Their counsel argues that all of the material facts giving rise to the additional heads of damage have previously been pleaded. The fact set out in proposed paragraph 22 b) – that the pregnancy would have been terminated had the Beauchamps been advised by the defendants that the fetus had spina bifida – is asserted to be in support of a head of damage that is already implicit in the existing claim, and does not alter the claim for negligence based on a breach of the duty and standard of care of a radiologist arising from the facts already pled. Additionally, a fair reading of the original pleading, it is argued, includes a claim for wrongful birth.

[10] With respect to the significant amendment in paragraph 22 d), being the proposed amendment to plead discoverability, the plaintiffs argue that the amendment should be presumptively granted pursuant to rule 26.01, as there is no prejudice to Dr. Gervais arising from such an amendment at this stage of the proceeding. Dr. Gervais has raised the issue by pleading that the action is statute barred.

[11] Dr. Gervais’ counsel assert that the proposed amended claim discloses for the first time in the pleadings that, but for Dr. Gervais’ alleged breach of the standard of care, Janice Beauchamp’s pregnancy would have been terminated. It is argued that these new facts are pled in support of a new cause of action: wrongful birth. The defendant alleges that a broad reading of the claim fails to assert that Emily would not have been born but for the negligence of Dr. Gervais, which is a necessary element to succeed in a claim for wrongful birth. As the pleading in its original form cannot support a personal claim by the parents for damages for wrongful birth, the proposed amended claim discloses a new cause of action.

[12] Dr. Gervais’ counsel argue that the evidence shows that the Beauchamps had all of the necessary facts to enable them to infer that Dr. Gervais’ acts or omissions caused or contributed to their losses by June 2005, and accordingly the claim as constituted should be dismissed. It follows that any new cause of action raised by the proposed amendments is likewise out of time, and the loss of a limitation defence gives rise to a presumption of prejudice: Frohlick v. Pinkerton Canada Ltd., 2008 ONCA 3, 88 O.R. (3d) 401, at para. 17. The defendant argues that any personal claim for negligence or wrongful birth was known by the plaintiffs in 2005, and therefore any cause of action on behalf of Janice and Kelly Beauchamp was statute barred when the action was commenced.

Analysis

[13] The plaintiffs rely on the leading case of Cahoon v. Franks, 1967 77 (SCC), [1967] S.C.R. 455, 63 D.L.R. (2d) 274, as authoritatively outlining what constitutes a new cause of action. As summarized by plaintiffs’ counsel in his factum, in Cahoon the plaintiff was involved in a motor vehicle accident. The plaintiff initially claimed damages for property damage. After the limitation period had expired, the plaintiff sought to amend the claim to include a claim for personal injuries. In finding that the proposed amendments did not establish a new cause of action, the Supreme Court of Canada in Cahoon endorsed the following passage by Porter J.A. in his reasons for judgment at para. 7:

The cause of action or, to use the expression of Diplock, L.J., “the factual situation” which entitles the plaintiff here to recover damages from the defendant is the tort of negligence, a breach by the defendant of the duty which he owed to the plaintiff at common law which resulted in damage to the plaintiff. The injury to the person and the injury to the goods, and perhaps the injury to the plaintiff’s real property and the injury to such modern rights as the right to privacy flowing from negligence serve only as yardsticks useful in measuring the damages which the breach caused.

I make reference again to the abstracts quoted by Johnson, J.A. from the judgment of Lord Denning in Letang v. Cooper at p. 240, and the judgment of Diplock, L.J. in Fowler v. Lanning, [1959] 1 Q.B. 426. “The factual situation” which gave the plaintiff a cause of action was the negligence of the defendant which caused the plaintiff to suffer damage. The single cause of action cannot be split to be made the subject of several causes of action.

[14] The plaintiffs also rely on the Court of Appeal’s decision in Gibbons v. Port Hope and District Hospital (1999), 1999 2117 (ON CA), 91 A.C.W.S. (3d) 157, 124 O.A.C. 149 (C.A.). In Gibbons the parents’ child was stillborn. The parents sued the attending doctors and hospital, claiming pursuant to the Family Law Act. The statement of claim was issued in time. Almost a year later it was amended to assert personal claims by the parents. The doctors brought a summary judgment motion to dismiss the action on the basis that the action as originally constituted was untenable at law for the following reasons:

a) Because the fetus did not survive to birth it did not have legal status to sue in tort; and

b) The parents’ Family Law Act claims were derivative, such that if the fetus’ claim was untenable at law, then so were their Family Law Act claims.

The doctors further asserted that the parents’ personal claims for general damages were added outside of the limitation period and accordingly were statute barred. At first instance the doctors’ motion was granted. On appeal the decision was reversed, the Court of Appeal stating, at para. 3:

A “cause of action” is defined as “the fact or facts which give a person a right to judicial redress or relief against another”: Black’s Law Dictionary (6 ed.). All the material facts supporting the appellants’ personal cause of action were pleaded in the original statement of claim. Although the appellants were incorrect in pleading that their right to redress or relief arose under the FLA, it is our view that the original pleading contained the facts upon which their personal cause of action arises at common law and it asserted that a duty of care was owed personally to them. Hence the subsequent amendment to the pleading asserted no new cause of action.

[15] Another seminal case identified by the Ontario Court of Appeal in Dee Ferraro Ltd. v. Pellizzari, 2012 ONCA 55, 346 D.L.R. (4th) 624, is Canadian National Railway Co. v. Canadian Industries Ltd., 1940 346 (ON CA), aff’d 1941 16 (SCC). The court in Dee Ferraro summarized the ratio of Canadian National Railway, at para. 5:

The plaintiff sued for damages following the destruction of a cargo of sodium cyanide due to a derailment of the defendant’s railway line. He pleaded that the defendant was a common carrier and that the goods had been damaged. The trial judge allowed an amendment, at trial, to plead negligence. Middleton J.A., writing for the court, held at para. 18 that the amendment was properly allowed – it was not the institution of a new cause of action, but simply an alternative claim with respect to the same cause of action: “The amendment relates to the remedy sought upon facts already pleaded.”

[16] At para. 18 of Canadian National Railway Middleton J.A. wrote:

There was not a complete change of the cause of action and the amended cause of action could be said to have been brought at the time the action was originally instituted. The allegations of fact are precisely the same in substance as they were in the original bill and are not to be regarded as the instituting of a new cause of action, but merely as an alternative claim with respect to the same cause. This applies here. The amendment relates to the remedy sought upon facts already pleaded.

[17] In Dee Ferraro the court allowed an appeal against a motion judge’s order that denied amendments to the claim on the basis that they added new causes of action. At paras. 4 and 9, Strathy J. (as he then was) explained the basis for granting the appeal:

[4] In my respectful view, the motion judge erred in concluding that the proposed amendments added new causes of action. The original pleading, while far from elegant and orderly, contains all the facts necessary to support the amendments. The amendments simply claim additional forms of relief, or clarify the relief sought, based on the same facts as originally pleaded.

[9] In my view, apart from tidying up the claim for relief, and extending the relief sought, the proposed amendments do not add any material facts to those already pleaded. In some cases, the claims sought to be added are already found in the existing pleading. In the other cases, the claims are simply alternative forms of relief based on the facts already pleaded.

[18] At para. 6, Strathy J. contrasted the case before him with the facts of Frohlick, in which the court ruled that unrelated statute-barred claims, which were added by way of amendment to an existing statement of claim, are not contemplated under rule 26.01.

[19] A recent decision from the Divisional Court is also of assistance: A1 Pressure Sensitive Products Inc. v. Bostik Inc., 2013 ONSC 4734.

[20] Germane to this motion are Sachs J.’s comments at paras. 18‑20:

[18] In considering the Respondent’s position, it is important to remember certain principles that should govern the analysis when it comes to assessing whether an amendment should be allowed when a limitation period issue exists…

[21] Finally, two additional cases should be referenced, which highlight the nuanced approach to be taken in determining whether amendments plead a new cause of action, or provide additional heads of relief or particulars of the damages claimed…

[22] In 1309489 Ontario Inc. v. BMO Bank of Montreal, 2011 ONSC 5505 Lauwers J. (as he then was) distinguished between a technical cause of action and a factual cause of action…

[23] The preceding authorities establish that in order to qualify as something other than a new cause of action the proposed amendments must, in substance, be: (i) an alternative claim for relief… (iv) the assertion of a new head of damage arising from the same facts.

[24] Dr. Gervais’ counsel argue that none of these circumstances apply…

[25] Accordingly, the defendant argues that a claim for wrongful birth is predicated on two facts:

(i) A physician is alleged to have breached a standard of care by failing to provide a mother with material information about the health of a fetus; and

(ii) A mother who alleges that had she been provided with the material information, she would have elected to terminate the pregnancy.

[26] Defence counsel argue that in this case the first factual allegation has been pled, but the second one appears, for the first time, among the proposed amendments.

[27] I am unable to agree with these submissions…

[28] While terminating the pregnancy is not explicitly stated to be an “option” or “treatment option”, a reasonable inference can be drawn that termination may have been one such option…

[29] In particularizing the alleged negligence…

[30] Accordingly, read broadly, the claim already asserted that the failure to outline the options for treatment caused or materially contributed to the resulting damages of the Beauchamps…

[31] That being the case, the claim as originally drafted supports a wrongful birth claim…

[32] Furthermore, I am not persuaded that the Court of Appeal’s decision in Paxton was intended to outline the constituent elements of a wrongful birth claim…

[33] The comments relied on by defence counsel from the Court of Appeal’s decision in Paxton, at para. 27, are in my view obiter dicta…

Was the Claim Statute Barred When Initiated?

[34] The defendant asserts that any causes of action accruing to Janice and Kelly Beauchamp… were barred by the Limitations Act, 2002.

[35] As Emily’s birth occurred in 2004, the relevant limitation period is two years from the date on which a claim was discovered…

[36] The facts relied on by Dr. Gervais to assert that the limitation period in this case began to run by June 2005, are as follows…

[37] By the end of her appointment with Dr. Gervais, Janice Beauchamp is alleged to have possessed or had express knowledge of all of the facts necessary to commence a claim…

[38] In contrast, the plaintiffs assert that it was not until their former lawyer received the opinion of a diagnostic radiologist, Dr. Stronell…

[39] In medical malpractice cases, the courts have recognized that plaintiffs will often need the input of medically trained persons…

[40] It is true that by June 2005 the plaintiffs: i) knew that Emily was born with spina bifida…

[41] Still, the defendant argues that these are sufficient material facts to initiate an action…

[42] This is not a case, such as McSween, where it is patently obvious that a medical procedure… was the cause of the injury.

[43] Medical negligence actions… are not to be lightly undertaken…

[44] The plaintiffs could never have been in a position to identify and draw conclusions from these findings…

[45] The defendant further argues, in the alternative, that by application of s. 5(1)(b) of the Limitations Act, 2002…

[46] The plaintiffs filed two affidavits sworn by their former lawyer setting out the extensive and involved steps taken…

[47] Also important is that the plaintiffs consulted with a lawyer and family friend sometime after December 2005…

[48] For the foregoing reasons, there is a genuine issue for trial as to whether the claim is statute barred…

[49] The amendment to plead discoverability shall be granted…

[50] The following order shall issue:

1. The plaintiffs are granted leave to amend the statement of claim in the form attached as Schedule “A” to their notice of motion dated July 15, 2014.

2. On consent, the action shall be dismissed against Dr. Howard Pattinson and Mary Pattinson, without costs.

3. On consent, the motion for summary judgment dismissing the claims of Emily Beauchamp in this proceeding is granted.

[51] Because the claims of a minor are being dismissed as a matter of law in this case, this court orders that the requirements of rule 7.08 are dispensed with.

[52] If the parties are unable to reach an agreement on costs, they may each make brief submissions in writing…

Healey J.

Released: September 21, 2015

[1] Anns v. Merton London Borough Council, [1977] 2 W.L.R. 1024, [1977] 2 All E.R. 492 (H.L.).